11 april 2008

Social conflicts and the law (Lucas Decuypere)

Considering for example the social actions from the Belgian labour unions as a response to the government's Generation Pact a couple of years ago, it seemed utmost interesting to perform some research in the social cohesion. Therefore a profound analysis of the relation between the right to strike and the right to work seemed very accurate. As a result of this research I will provide a suitable answer to our proposition of research which will harmonise the controversies of both rights. Quite often, Belgium is shaken by massive general strikes, which are nothing else than offensive acts performed by the employees as reactions to some decisions of the government. The Generation Pact for instance was designed to boost retention of older workers and to increase youth employment. Therefore it included an increase of the age of retirement, from 58 to 60. The pact was necessary; otherwise an entire generation of youthful people would have had to pay for the nation's highly elevated pension scheme.

Although the content of the Pact might seem logical, the leadership of the Christian trades union ACV and the socialist trades union ABVV had decided to reject the Generation Pact. They were calling for more provision for older workers, saying that employees over 50 are often dismissed when companies attempt to decrease their socioeconomic work expenses. For this reason, the labour unions were willing to take actions. Thus they persuaded all their members to express their protest by means of a general strike. But due to the perseverance of the Belgian government, they considered it as utmost obligatory to boycott the Belgian economy a second time with an equally strong general strike.

The strikers made use of roadblocks and pickets, which often gave conflicts between people who have joined the action and people who wanted to work because this last group is being kept away from the entrance to their respective companies. The same problem can also be situated at the level of the employers and labour unions. Whereas one party appeals to the right to work, the other refers to the right to strike in defence of their distinct statements and actions. In order to comprehend the conflict between the two rights, a juridical comparison might seem appropriate.

Article 6 paragraph 4 of the European Social Charter recognises the right of workers to take collective action in cases of conflicts of interest, including the right to strike, sometimes described at a landmark in international labour law, as the first recognition in a treaty in force of the workers’ right to withdraw his or her labour as part of the process of collective bargaining. The acceptance of the right to take industrial action of this type recognises the inherent inequality of the positions of employer and employee and, in particular, the difficulties faced by an employee in acting alone to better his or her conditions of service.

The Charter does not provide an absolute right to strike in all circumstances and for all employees. The Appendix tot the Charter provides that a state may regulate the exercise of the right to strike, provided that any restrictions so imposed can be justified under the terms of Article 31. In the first supervision cycle the Committee of the European Union had held that “where the limits within which the right to strike could be exercised have been determined, in a state, not by legislation but by the courts, it is for the Committee to examine whether the case law thus established is in accordance with the requirements of the Charter”. So this particularity of the right to strike means that the limitations to the right must be considered by jurisprudence rather than by legislation. This evokes greater power in the hands of a judge.

The right to work is the first right protected by the European Social Charter. As the Committee pointed out in the first supervision cycle, it is of fundamental importance within the context of the Charter, for the effective exercise of several essential rights set forth in the charter is inconceivable unless the right to work is guaranteed first. Examples are the right to just conditions of work (article 2), and the right to fair remuneration (article 4). The right to work cannot however mean what it appears to mean: that a state must guarantee a job to every person who desires one, which is evidently impossible to fulfil, as the availability of work depends on the situation of the labour market and on whether the skills of jobseekers correspond to the demands of the market. Accordingly, Article 1 does not aim to provide employment to all those who are in search of it: instead, it consists of four specific undertakings which will improve job opportunities. The Committee thus stated that this article aims to ensure the effective exercise of the right to work.

The right to work occupies a central place in the Social Charter, not only because it is important in its own right, but also because the actual exercise of several basic rights enshrined in this instrument are unconceivable unless the right to work is guaranteed first. However, the right to work does not mean that the state must guarantee a job to everyone who wants one, as any such provision would be unworkable. The government has to make full employment the primary objective of their economic policy.

As the right to work seems to be the ground on which the right to strike is a complement to, logically the right to work should enjoy a complete independence and inviolability. The right to strike will pop up when necessary; this is when abuses are being made in the social labour context. But in reference to the actual Belgian problem, where the government’s decision is doubtable in questions of social unfairness, the employees should be given the individual choice whether they want to participate in the actions or rather work. This then is related to the employee's opinion about the governmental decision. This refers to an individual and liberal solution where people who want to work don't harm people that are striking, and vice versa, the rights of the people who want to work should not be violated by strikers who make it impossible to reach the workplace, by means of roadblocks or train delays.

Both rights have separate reasons of existence. Considering both rights separately, they seem very important in a 21st century society. The right to work is the ground foundation that supports today's world economy along with the modern society. World economy provides to all of its participants a continuous elevation of the prosperity level. But to prevent employers of abusing their own employees, the right to strike is indispensable. Otherwise, the situation of the 19th century where employers have a unlimited monopoly on the global work institution, where history has proven that dishonest situations in the employer-employee sphere were every day’s habitude.

Lucas Decuypere


At 12/4/08 00:13, Anonymous Anoniem said...

Vincent, it's great reading more texts in English on this blog, since it is very difficult to find real English news on Belgian issues. Great job!

But I have a question/remark. The right to strike is not internationally accepted, I believe, since the UK, where I live, could opt-out from the European Human Rights Charter simply because it would force Britain to adopt legislation promoting the right to strike. So in the given circumstances, it simply can't be an international right, because otherwise Britain would never had the chance to opt-out of it.


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